TRAIL SOFTWARE, INC. (DBA Kindful) TERMS OF USE

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.

Trail Software, Inc., doing business using the name Kindful ("Kindful"), requires that all visitors to its site, kindful.com, and its other sites, agree to all of these terms and conditions (the “Agreement”). By accessing and using the Sites, you indicate your acknowledgment and acceptance of this Agreement.

Kindful is a Web-based service that enables organizations (our “Customers”) to upload, store and manage donor and member lists, create and manage donation campaigns, including the acceptance of online donations, manage event ticketing, and track and archive results (“Kindful Service”). The Kindful Service and its related services are provided to you, the User, by us, and your use of the Kindful Services shall be pursuant to the terms and conditions set forth in these terms of use (the “Agreement”). For the purposes of this Agreement, we will refer to ourselves as “Kindful” and to you as the “User.” Any use of the pronoun “you” in this Agreement refers to you as User, and any uses of the pronouns “we” or “us” refer to, well, us.

You, us, and ownership

Your use of the Kindful Service confers no title or ownership to the Kindful Service. We are granting you temporary, non-exclusive access to Kindful Services that will endure as long as (a) the Agreement is not terminated in accordance with the terms of this Agreement, (b) you continue to provide payment for the Kindful Service in a timely manner, and (c) you continue to abide by the terms of this Agreement. Further, You shall not transfer your right to use the Kindful Service to another party or person, any such transfer or attempted transfer will result in immediate termination of the Agreement.

Kindful owns all graphics, software, algorithms, functionality, content (other than content owned by you or any third party), pages, features and processes that comprise the Kindful Service. You agree not to copy, modify, re-package, reverse-engineer, disassemble, modify or otherwise use the Kindful Service or its components in ways not explicitly allowed by this Agreement, without prior written consent from us. You also agree not to remove any proprietary notices or labels from the Kindful Service.

KINDFUL® (U.S. Reg. No. 5,205,040), the cloud design (U.S. Reg. No. 5205042) and all related names, logos, product and service names, designs and slogans are trademarks of us, our affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs and slogans on this website are the trademarks of their respective owners.

Special Provisions Relating to Customers

By opening a Kindful account, and using the Kindful Service, you agree to abide by the terms set forth in this Agreement. You covenant that (a) you are at least eighteen years of age, (b) you have the authority to use the Kindful Services on behalf of your organization, and (c) you are representing yourself and your company honestly to your email recipients and to us. You also agree to maintain current information about yourself and your organization, and to update that information as it changes.

Responsibility for account use and content

You are responsible for everything that happens in your Kindful account, including the email addresses that are added, imported and stored, as well as the content published, distributed or linked to from your campaigns. You agree to take full responsibility for any and all content distributed through your Kindful account, and to abide by all pertinent copyright laws. Should we find reason to believe you have violated any laws in the course of your use of the Kindful Service, or plan to violate any law using the Kindful Service, we may suspend or cancel your account immediately and without warning.

How we protect your personal information

We take precautions to safeguard your PII against loss, theft, and misuse, as well as unauthorized access, disclosure, alteration, and destruction. Please be aware, however, that despite our efforts, no security measures are perfect or impenetrable and no method of data transmission that can be guaranteed against any interception or other type of misuse.

You can help us by also taking precautions to protect your personal data when you are on the internet. Do not share your registration information with anyone, and make sure you use a secure web browser.

Protecting your data and your privacy

We agree to hold your account information, lists and data in strict confidence. We do not now, nor will we ever, rent, sell or in any way share your data with any third party. The only time Kindful will ever share ANY information related to your Kindful account with an outside organization is if (a) the outside organization is processing your payment for the Kindful Service and requires certain information necessary for the transaction, (b) the outside organization is the federal government or other agency empowered to require us to divulge your personal or account information, (c) Kindful is highlighting examples of your templates, campaigns or case studies and have obtained your permission prior to the divulging of such information, or (d) Kindful is reporting on or using our overall customer base and activity, in which case we will only divulge general, aggregate (non-personally identifiable) information.

In creating your Kindful account, you will create a username and a password that controls access to your account and all of the data stored within that account. The Kindful Service stores an encrypted version of your password for added security, but you understand and acknowledge that you are ultimately responsible for maintaining control of that username and password and ensuring its proper use by authorized personnel only.

Adhering to the Safe Harbor Data Privacy Principles

Kindful adheres to the data privacy principles of the Safe Harbor program, designed to provide U.S. companies with guidance on how to provide adequate protection for personal data from Europe as required by the European Union’s Directive on Data Protection. Kindful is listed in the United States Department of Commerce’s Safe Harbor directory of self-certifying companies, available here.
Direct any Safe Harbor inquiries or requests to:

Things you may not do

The following list outlines many things, in addition to those already mentioned in this Agreement, which you may not do while using the Kindful Service. Doing any one of these things may result in the suspension or termination of your Kindful account, immediately and without warning. By using the Kindful Service, you explicitly agree not to:

use the Kindful Service to break any local, state, Federal or international laws or regulations, including but not limited to those related to spamming, e-commerce, obscenity, defamation or privacy;

use the Kindful Service to encourage or facilitate any illegal activities;

use the Kindful Service to harass, threaten or embarrass any person or organization;

use the Kindful Service to promote MLM (multi-level marketing) or Ponzi schemes;

use the Kindful Service to distribute illegal, pornographic or potentially harmful or offensive information, photos, software or materials, or include links to Web pages containing any such items (We reserve the right to use our own judgment in determining what is offensive); or

use the Kindful Service in conjunction with email addresses or lists that have been obtained in any way other than those outlined as permissible in this Agreement.

Your data, and our storage thereof

Your Kindful account includes certain data storage – for lists, campaigns and content, and response tracking information. We may choose to set limits on how much information may be stored, and may change those limits at any time. Should we impose any such limits, we will provide you with reasonable advance notice of such limits, and, when possible, offer you the option to either obtain more storage at an additional cost or maintain a lower level of storage without incurring additional costs. Kindful is not responsible for the loss of any data in the event that you fail to request either more storage space or a transfer of existing data to another location and data is lost due to a change in limits or by your exceeding the existing limits.

Kindful's API

Kindful provides API Calls (“Calls”) to facilitate certain account activities without relying on the Kindful application interface. These Calls are governed by the same policies set forth herein. It is Kindful’s sole discretion to determine permissible use of the API and Calls. Any improper use of the API, as solely determined by Kindful, will be grounds for immediate termination of Customer’s account.

Payment for services

Like most commercial services, Kindful asks that you, the Customer, pay us for your use of the Kindful Service in a timely manner. Activity may be invoiced monthly or annually based on your preference and due no more than 15 days from the invoice date. Depending upon your plan you may also be charged transaction fees on the amount of online donations, event registration fees or other revenues that are processed online through the Kindful Service. All fees and prices are in US dollars. By entering credit card and billing information into the Kindful system, you are authorizing us to charge that card for services rendered and according to the pricing specified in your Kindful plan or a separate addendum to this Agreement, should such an addendum exist. All credit card transactions are handled through a secure HTTPS connection with a trusted third-party credit card processor. Lastly, like most commercial services, Kindful reserves the right to suspend your account in the event you fail to pay the appropriate account fees on time, until such time as proper payment is received.

Right to inspect

For the purposes of providing you service and support, and to ensure that the terms of this Agreement are being followed, we reserve the right to inspect and monitor your account and data at any time, without notice, and to limit access to your account at any time should we have reason to believe that you have already, or may at some point in the future, violate any terms set forth in this Agreement.

Termination

Termination requests should be in writing, via email to support@kindful.com or by phone to 888.854.0933. Inactivity does not constitute automatic termination. If you have elected a month-to-month agreement, your request to terminate will take effect at the end of the month in which such request was made. If you have elected a longer agreement term, your request to terminate will take effect at the end of your selected contract term. You may terminate immediately if we make a Modificaiton to this Agreement that you do not accept or agree to. In any case, the date the termination takes effect will be called the Termination Date. Customer is responsible for payment for any services rendered up through the Termination Date. Kindful will not prorate charges to the Termination Date and the Customer will not receive a credit or refund for any unused services. Except for a Termination following an unaccepted Modification to this Agreement, if Customer has paid in advance for a certain period of time for the Kindful Service or any portion thereof and terminates prior to the completion of that period, that payment is non-refundable.

Should we be forced to terminate your account or you terminate your account, we will work with you to help retrieve contact information and other appropriate data from your account within 30 days of termination of your account. After such 30 days, Kindful makes no guarantees regarding the availability of your data, and Kindful shall not be liable for the availability of your data for more than thirty days following the date of termination by either party.

Disputing Charges

Any dispute to a charge on your bill must be made within 60 days of the date of the bill that initially contained the charge. Disputes can only be made in writing, via email to support@kindful.com or by phone to 888.854.0933.

Special Provisions Relating to Donors

Thank you for your interest in donating to Kindful customer Out Youth. By donating to an organization or creating a new account on the Sites ("Donor"), the following additional terms apply.

Donor Representations

By becoming a Donor, you promise that:

You are a U.S. citizen at least 18 years old or if under 18 years old are acting with parental consent and under parental supervision; and

All information you provide to Kindful and the organization is accurate, and you will update the information to keep it accurate.

Any donation you make is legal in your jurisdiction.

If you create a Donor gift registry account enabling you and others to contribute funds for a specific project in honor of a named person (for example, contributing funds to honor someone's birthday, anniversary or other special event), you represent that you have permission of the named person (or permission of their parent, if a minor) to provide their name and other required information for display to prospective donors and other users on the Sites.

Donor Responsibilities

If you create a donor profile, you will be responsible for the use and maintenance of the confidentiality of your user ID and password (which you will receive upon completing the process of registering as a Donor) for access to Donor-restricted portions of the Sites, and shall not share your ID and password with anyone else. You agree not to use the account, username, or password of another Donor at any time or to disclose your password to anyone else. You agree to exit from your account at the end of each session and to immediately notify Kindful of any unauthorized use of your password or account. You are solely responsible for any and all use of your account and for any actions that take place using your account. All suggestions and comments you provide become the intellectual property of Kindful.

Kindful reserves the right to exclude any Donor from use of the Sites, in Kindful's sole discretion. All directions and requirements stated on the Sites regarding Donors or donations shall apply to any donation offered or made by you.

Modifications to this Agreement

We may, from time to time, edit, append or otherwise modify the terms of this Agreement. Any changes will require notice from Kindful to Customer. Your continued use of Kindful after such notice indicates your acceptance of those changes and agreement to abide by them.

WARRANTIES AND DISCLAIMERS

THE KINDFUL SERVICE AND ITS RELATED SERVICES ARE PROVIDED “AS IS,” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH KINDFUL SERVICES OR THIS AGREEMENT.

IN SHORT, WE CAN NOT AND DO NOT GUARANTEE THAT THE KINDFUL SERVICE WILL WORK IN ANY PARTICULAR WAY, NOR CAN WE GUARANTEE THAT IT WILL PROVIDE YOU WITH ANY PARTICULAR RESULT, LIKE MAKING YOU MORE MONEY OR INCREASING YOUR CUSTOMER BASE. YOU AGREE NOT TO HOLD US LIABLE, FINANCIALLY OR OTHERWISE, SHOULD THE KINDFUL SERVICE FAIL TO PERFORM THESE THINGS THAT WE CANNOT GUARANTEE IN THE FIRST PLACE. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY AMOUNT GREATER THAN THE FEES YOU HAVE PAID TO US FOR YOUR USE OF THE KINDFUL SERVICE OVER THE PREVIOUS TWELVE (12) MONTHS.

TO REITERATE: YOU, THE CUSTOMER, AGREE TO INDEMNIFY AND HOLD HARMLESS TRAIL SOFTWARE, INC., ITS OFFICERS, EMPLOYEES AND BUSINESS PARTNERS, FROM ANY CLAIMS ARISING FROM YOUR USE OF THE KINDFUL SERVICE OR ITS RELATED SERVICES.

Headers

The headers in this Agreement are provided as visual aids only and are not to be considered legally binding in any way.

Miscellaneous

This Agreement says everything there is to be said about the relationship between Kindful and you and your use of the Kindful Service and, therefore, it supersedes any other agreement about those topics, unless mutually agreed to in writing by both parties. You cannot, without prior written consent of Kindful, transfer any of your rights or responsibilities under this Agreement. We can transfer any of our rights and responsibilities under this Agreement, with prior notice to Customer.

This Agreement will be interpreted in accordance with the laws of the State of Tennessee. Should Kindful and you ever have to go to court over this Agreement or anything related to your use of the Kindful Service, you agree to submit to the jurisdiction of the Federal and state courts in Davidson County, Tennessee. Before going to court, all parties agree to attempt to sort out any problem through arbitration in Nashville, Tennessee, in accordance with the regulations of the American Arbitration Association. If any provision of this Agreement is held to be invalid, that provision will be enforced to the extent possible and all other provisions of this agreement will be given full effect. If we fail to act to enforce any of the provisions of this agreement, that inaction will not be a waiver of our right to act and will not affect our ability to act later.

We may send you any notice that is required by this Agreement or otherwise via email or regular mail or by posting the notice on the Kindful website. Any notice you send us should be sent to support@kindful.com or mailed to: